Episode 39: From Cradle to Courtroom: How Media Stacks the Deck Against “Defendants”
Citations Needed | June 6, 2018 | Transcript
This episode of Citations Needed was recorded live in front of a studio audience at UnionDocs in Brooklyn, New York, on May 25, 2018.
Intro: This is Citations Needed with Nima Shirazi and Adam Johnson. Live!
Nima Shirazi: Woo hoo. Alright. Hello, everyone. Welcome to Citations Needed, I am Nima Shirazi.
Adam Johnson: I’m Adam Johnson.
Nima: This, as you well know, is our first ever live show. (Applause) Thanks to all of you for coming out. This is amazing. What a room. We are recording live from UnionDocs in Williamsburg, Brooklyn, my home borough, thank you G train. Thank you to Florence and Josh, who you just heard do the intro, and to everyone here at UnionDocs for hosting us tonight. Thank you, everyone. Uh, before we get started, I will remind you all that you can follow the show on Twitter @CitationsPod; follow, share, like, do whatever you do on Facebook at Citations Needed. And for those who would like to support the show, support the work, keep it going, it’s totally listener funded, you can do that via Patreon.com/CitationsNeededPodcast with Nima Shirazi and Adam Johnson. Hi, Adam.
Adam: How you doing, buddy?
Nima: I’m great.
Adam: Thank you all for coming out. Thank you Florence for that introduction and thank you Court Watch NYC for coming on our show and helping us out today. So, um, the way you measure media and the way you measure media’s impact is very abstract. It’s sort of difficult to pin down. It’s not very scientific. We try to make it as, as kind of quasi-scientific as we can and one of the fields of interest that we’ve done on the show a few times that we’re going to flesh out here a little more is the degree to which people’s perceptions of crime and criminality are informed by the media. I think this topic probably more than any is influenced by a combination of television dramas, TV news and general newspaper coverage.
Nima: So, the United States far and away has the largest prison population on the planet. There is also one of the greatest disparities between that population and ethnic minorities in the, in the world. So, how does a country that prides itself on being a beacon of freedom and hope and justice and it has its leaders travel around the world scolding other nations on their human rights abuses, how does that nation find itself to be the largest carceral state of the 21st century?
Adam: One of the things we’re interested in, what are the cultural forces that have created a deference to police and prosecutors that has created a country where seven million people — the equivalent of North Dakota, South Dakota, Washington DC, Vermont, Alaska, Delaware and Montana — find themselves either in cages or on probation.
Nima: So to discuss this and a lot more, we will be joined later in the show by Rachel Foran, Managing Director of the Brooklyn Community Bail Fund, a nonprofit organization that pays bail for New Yorkers that cannot afford it for themselves and fight for the elimination of the money bail system. Recently, Rachel helped create the community driven court monitoring and prosecutor accountability project Court Watch NYC. We will also be joined by Naila Siddiqui, a public defender who represents indigent New Yorkers accused of crimes. She is a member of, uh, the 5 Boro Defenders, a coalition of public defenders in New York City organizing around these systemic injustices of the criminal legal system.
Adam: So, for the show, we’re going to be, it’s a little bit different. We’re going to structure it in five parts. We’re going to follow from birth to their actual time they either plea or sit in front of a judge, the sort of typical median, I guess, ‘defendant’. Uh, typically African American and in their early twenties. And those five stages are going to be the following: birth, childhood, adolescence, arrest and plea. And we’re going to, at each five of those points, discuss how the media helps to stack the deck against this person. First is birth. So, right at birth for the past 30 years there’s been a narrative built around the smearing of African American women and their children as crazed criminals. Uh, the media is quick to sort of elevate anecdotal or quasi scientific studies that reinforce the narrative of kind of a black criminality as something that’s a sort of menace. So in the ‘70s it kind of became more and more politically incorrect to sort of be overtly racist. So what you saw in the ‘80s, and the late ‘80s —
Nima: Only a little. (Laughs)
Adam: A little, right. So what you saw in the ‘80s and the late ‘80s, well, it’s more overt as we get into later, but it had to sort of pass what we call the kind of Manhattan cocktail party test where you can be racist, but you need to be able to feel it out over sort of Chardonnay at a Upper West Side party and if you’re not quite liberal enough, you sort of, ‘Okay over there? Okay. So there’s this thing called Broken Windows. It’s scientific. It’s not racist.’ Um, you know, if we’ve discussed this on one episode, if I was a go to you and say, ‘Oh, we’re going to just arbitrarily harass Black and brown people at a rate of 90 percent,’ you’re sort of do goodie liberal would be like, ‘Oh, come on. That’s racist,’ but I will say ‘No, it’s scientific.’
Nima: ‘Criminologists said so!’
Adam: Yeah. There’s a few mercenary criminologists out at the University of Bumfuck (audience laughter) who insist that this is actually like backed by empirical data. And I throw some line charts in front of you, ‘Oh yeah. Oh, clearly. It’s science.’ And —
Adam: And we’re all, I’m not, its just race neutral, right? Sort of like, you know, the poll tax or literacy tests to vote in Jim Crow. It’s just neutral, right? It’s not this thing. And so, um, one of the things we want to start off discussing is how deeply pernicious and how ubiquitous, that’s all the SAT words I have, (audience laughter) the concept of crack babies were, in the late eighties and nineties, and we want to sort of start with that as the sort of origin of birth and the way that was used to smear African American women and to criminalize before they even had a chance to develop or even have any kind of say in it, uh, African American men and children.
Nima: So based on a limited and very qualified study of children prenatally exposed to cocaine or crack the media declared crack babies to be a full blown plague by the mid-‘80s. These kids were said to have been born barely human incapable of basic human interaction, permanently condemned to a lives living in like a, like a ghost world of tremors and cat like wailing and a brain damage and then eventually violence and brutality. And the original research that spawned this panic and all of the articles that followed and all the, all the news reports, it was all really based on one study from 1985 of just twenty-three women who had used crack during pregnancy. That’s it. And it spawned this entire kind of rash of media hysteria.
Adam: And this was really animated by the Reagan administration, um, who, who gave a speech in September of 1986, saying, “Drugs are menacing our society. They’re threatening our values and undercutting our institutions. They’re killing our children… Today there’s a new epidemic: smoke-able cocaine, otherwise known as crack. It is an explosively destructive and often lethal substance which is crushing its users. It is an uncontrollable fire.” Again there’d always been a moral panic around drugs but crack cocaine had a uniquely racial aspect and obviously there was broader context, which we don’t have time to get into, vis-à-vis what the CIA was doing in South America, uh, but we’ll open that —
Nima: That’s another eight shows. (Laughs)
Adam: That’s a can of tuna for another episode.
Nima: In Reagan’s speech in 1986 he actually pivoted toward the end of it and made a direct appeal to the media itself. He basically directed those “in newsrooms and production rooms of our media centers,” this the president, “you have a special opportunity with your enormous influence to send alarm signals across the Nation.” Subsequently, the White House actually instructed DEA officials to allow ABC News to accompany them on crack house raids as the head of the New York office of the DEA reported back to his own superiors, “Crack is the hottest combat-reporting story to come along since the end of the Vietnam War.”
Adam: According to one study that was done by, uh, by Jason Glenn at the University of Texas, he said in 1986 alone there was more than one thousand different crack stories in American media, four hundred of which alone were on NBC News. So NBC News, which only at that time had a nightly news broadcast, did over one crack-cocaine story a day.
Nima: The crack baby epidemic and crack plague was actually featured five times each on the cover of TIME and Newsweek. In 1989, as this kind of kept going and kept building The Washington Post called “cocaine babies” so you can see “a time bomb” and “a potential human plague” saying that when these babies grew up, “those infants won’t look so cute anymore” and would inevitably “wreak havoc on themselves and others.”
Adam: So you have this kind of not, not even semi-genocidal, this is sort of overtly genocidal language about the pending doom of crack babies. And for the record, this is not something, we’re not the first people to make this point. And at the time different media watchdogs like FAIR, which I sometimes write for, were writing things saying this was super racist and you shouldn’t say this, but the kind of liberal establishment media at The New Republic and The Atlantic, we’re like sort of pooh-poohing saying, ‘Oh, you guys are just being a bunch of wacky progressives, the science is in,’ like, yeah, you have to put it in context to crime is relatively high at that time too. And so they were looking for a kind of pseudo explanation to basically just throw a bunch of African Americans in jail and to criminalize them in part of the general collective conscious if you will.
Nima: Yeah. So actually later in this article, the journalist Courtland Milloy in this article, it actually says toward the end, um, it talks about the horror stories about the brutal nature of these crack kids and uh, quotes this physician J. Harold Nickens as saying, “We are desperately searching for answers,” and this guy was chairman of the DC Chapter of the American Society of Addiction Medicine. And he says, “We feel like we have a tiger by the tail.” And he goes on to kind of talk about the cost that it’s going to take, the amount of money it’s going to take to actually deal with this. And the reporter Milloy ends his article by saying, “The cost would be high, but not nearly as expensive as allowing them to grow up to be human tigers.”
Adam: So this is a repeated theme this idea of plagues and they’re beasts and they’re animals. Even sort of nominally liberal outlets like the Rolling Stone magazine joined the party in 1990, uh, they said, quote, “Crack babies aren’t all that fond of faces” and caution that “any human contact can overwhelm a crack baby… Since between ten to twenty-five percent of pregnant women admit to using cocaine, this already-bleak estimate may be grossly understated… And considering the peanut butter and jelly-like affinity that crack and sex have these numbers will doubtless just grow.”
Nima: So this, the story was, it was also on the, on the nightly news constantly with very serious people talking about cocaine kids. Um, and eventually you see —
Adam: It’s not a full blown moral panic without a Hollywood film.
Nima: Without, without Jennings. Oh, and a Hollywood film.
Adam: Right. So you had Halle Berry and Jessica Lange.
Nima: ‘Who decides what makes a mother.’ Losing Isaiah.
Adam: So this is sort of liberal, this movie sort of does it’s liberal best to like to have both sides, but it accepts the fundamental premise that the crack baby is going to be violent and like they’re basically trying to manage the process. So it’s like this sort of quintessentially liberal thing where it’s like, ‘We’re not going to dispute the axiom that they’re enraged beasts on crack but um granting that, how can we, how can we humanize?’
Nima: Here’s Jessica Lange!
Adam: Yeah, the sort of African American stereotypes-
Nima: You know, we, we obviously see this all the time. (Laughing) Um, the crack baby myth actually achieves this sort of media hat trick, the racial, economic and gender dog whistles, um, when it comes to obviously blaming the crack baby epidemic on the mothers, of course. And oftentimes this trope really devolved even further into just overt disgustingness. And to really symbolize overt disgustingness, here’s Charles Krauthammer. (Audience laughter) Writing in The Washington Post in August of 1989, he says, “The inner-city crack epidemic is now giving birth to the newest horror, a bio-underclass, a generation of physically damaged cocaine babies whose biological inferiority is stamped at birth.” In this article, he also refers to “a race of (sub) human drones,” which is actually terminology taken from Aldous Huxley’s Brave New World, and just it goes on “permanent inferiority,” “severe deprivation,” um, at the end of it all, his opinion is basically that “the dead babies may be the lucky ones.”
Adam: And these reports were very ubiquitous. This wasn’t just for right-wing commentators. You had the St. Louis Post-Dispatch in September of 1990. Their headline was, “Disaster In Making: Crack Babies Start to Grow Up.”
Nima: In San Diego Union-Tribune in 1992: “Drug Babies Invade Schools.”
Adam: So now they’re sort of a pest. Right? USA Today: “Crack Babies Born to Life of Suffering,” that was 1989.
Nima: LA Times also in ’89: “Parents Who Can’t Say ‘No’ Are Creating a Generation of Misery.”
Adam: Again, it’s the moral failing of the African American woman. If only she had sort of more discipline and just said no, because that’s the thing you can apparently do. And again, the broader context of how these drugs are ending up here, aren’t really talking about that. The New York Times, August of 1989, “Crack’s Tiniest, Costliest Victims.” Now, to be clear, what they meant by ‘cost’ was not that there’s a moral cost or a human cost, but that they literally costs the white taxpayer money.
Nima: Costs money. Yeah. Cheddar.
Adam: This is where they interject here. It’s like, ‘Oh, we got to stop the costs,’ you know, on some ledger of the federal government. Not that they’re like, you know, poor or, or, or affected by the drug itself.
Nima: Right. So it’s basically weaponizing what is already a health hysteria into this black urban economic warfare brought upon white suburban America. Then now they have to pay the price. They have to pay literally the cost of fixing this problem and out of nowhere do you see this better articulated or more horrifyingly articulated really then by a sitting congressman at the time, Representative George Miller, who was actually a member of the Select Committee on Children, who was interviewed on a nightly news broadcast and said this, “These children, who are the most expensive babies ever born in America, are going to overwhelm every social service delivery system that they come in contact with throughout the rest of their lives.”
Adam: Just to establish the stakes here. This is not happening in isolation. As we mentioned in Episode 21, there was a survey done by the Public Religion Network Institute that found that that only 25 percent of white people have nonwhite friends, which means 75 percent of white people have no nonwhite friends and an even higher percentage of that have no African American friends. So let’s say 80 percent of white people, their entire understanding of African Americans comes from the media. They don’t actually know any black people, um, in any kind of intimate or interpersonal sense. So like these narratives are shaping the perception similar to how like Fox News sort of talks about these college, you know, PC thugs, and then you actually talk to people of like how many people do know in college? And they don’t know anyone. It’s like their entire perception of the community is being filtered through this media hysteria, which was sort of almost uniformly accepted by what we would consider to be liberal or, or mainstream media.
Nima: Right. I mean, The New Republic had this cover, “The Day of Reckoning” and it was the kind of whole welfare queen trope. So-
Adam: It’s very subtle stuff.
Nima: (Laughs) Yeah. Right. And so you see that that this is just using this imagery and these media platforms to push this idea of really signaling that whenever you’re talking about criminality, whenever you’re talking about poverty, you’re talking about black people.
Adam: Yeah. Which wasn’t really supported by the evidence. So here’s a chart that shows the actual percentage of African Americans who are poor. The visual representation and the anecdotal representation of African Americans representing poverty.
Nima: Right. So, so like sometimes, you know, in, in the, in the, in the seventies, nearly 80 percent of images that would accompany articles about poverty were of people of color, certainly far more often, uh, African Americans. Whereas the kind of true percentage of the population, of the black population that actually lived in poverty is, was far below that closer to 30 percent. So you see this, it’s completely out of whack with reality.
Adam: And so then you have that sort of morphs into what our next segment is. By the way, that’s just birth. We’re not, we’re now going to childhood.
Nima: And by the way, we should point out two decades later-
Adam: Right. Sorry.
Nima: The whole crack baby thing was revealed to be utter bullshit.
Adam: Just total bullshit.
Nima: By the same news outlets obviously that were pushing this.
Nima: So The New York Times revealed in 2009 — Oh my God! — ‘Crack babies grow up and do better than expected’!
Adam: The New York Times, and this was pretty gross in 2014 they did what, they do this thing called Retro Report where they go back and look at media how media covers things. And they did the scathing thing on both crack babies and superpredators and they did this whole sort of report about how media panic and they did not mention once that The New York Times was one of the major advocates of this. (Audience reaction)
Nima: (Chuckles) Right.
Adam: You see this a lot. They did a editorial last year complaining about how we have permanent war and no one’s asking questions about the war on ISIS and literally every war they’ve supported. So it’s like well —
Nima: They’re like, anyway, ‘Bomb Syria’.
Adam: Shouldn’t you mention yourself? Right. So they’re, they’re like alcohol. They’re both the cause and solution to every problem.
Nima: (Chuckles) Right. Moving on.
Adam: So yeah, so now we’re at childhood now. And so this is where we get the, the, um, now that the sort of crack baby panic is kind of run out of gas and now there’s been a ton of evidence coming in saying this may not be true. Or the, the original research was faulty. And by the way, both crack baby and superpredator researchers later rejected their research. Um, so yeah, thanks for that. Um, so then you have a childhood which, which begins to sort of dovetail into this idea of superpredators, which was popularized as we did an episode where we talked about superpredators, but for those who may have missed it, I want to recap here.
Adam: So this was made popular by The Weekly Standard in 1995 who had a headline, “The Coming of The Super-Predators.” So now we have a new kind of, the crack babies have now —
Nima: Right. They’re growing up!
Adam: They’re like, they’re like Blanca in Street Fighter. (Audience laughter) They’re now sort of these new beasts. I mean it’s funny, but it’s actually how they were presenting it, right? It’s sort of these, these actual animals that had been released and now the superpredator was going to come and they were sort of jazzed up and amped up. And the context for this is that again, crime was relatively high, but by this time around ’94, ’95 and it had dropped somewhat precipitously and there’s lots of debate about why that is. But at this point, there was all this talk about crime skyrocketing even more, and it went completely down from there. The crime since 1993, 1994 has gone down virtually every year. Um, the murder rate in New York last year was the lowest it’s been since they, since they recorded it as such, in the early sixties. And so, uh, but that of course didn’t stop them from coming up with a new kind of pseudo-scientific, quasi-scientific, racist panic.
Nima: And so this is actually five years after the Central Park five case has really kind of brought the idea of these menacing wolf packs roaming parks and streets out to destroy people. And this really dehumanized language, of course, in this actual article this 1995 Weekly Standard piece and granted Weekly Standard, so you know, not really going to expect much better. But this criminologist named John Dilulio wrote, “We’re talking about boys whose voices have yet to change. We’re talking about elementary school youngsters who pack guns instead of lunches. We’re talking about kids who have absolutely no respect for human life and no sense of the future. In short, we’re talking big trouble that hasn’t yet begun to crest.” And later in the piece he declares that “All of the research” — research —
Adam: Science guy.
Nima: “indicates” —
Adam: Even though he, by the way, publicly denounced all this, but at the time it’s science —
Nima: Right. At the time. “All of the research indicates that Americans are sitting atop a demographic crime bomb.” See what he did there? “Crime bomb.”
Adam: “Crime bomb.” The worst kind of bomb, incidentally.
Nima: Um, and so this guy, John Dilulio, was subsequently invited to speak at the White House, um —
Adam: Where he met with?
Nima: Where he met with the Clintons. And it was the following year in ’96 that Hillary Clinton, uh, then First Lady, spoke of “the kinds of kids that are called super-predators. No conscience, no empathy, we can talk about why they ended up that way, but first we have to bring them to heel.” And what was the solution proposed by The Weekly Standard, by this criminologist? His solution to this epidemic or coming epidemic was ‘build more churches.’
Adam: It turns out it was a religious nut job.
Nima: Yeah. Imagine that.
Adam: His study was not that scientific.
Nima: Anyway. (Laughs)
Adam: Turns out he was just a racist. (Audience laughs) Spoiler alert guys. Sorry, I should have gotten that out of the way earlier. Um, so once you have crack babies, superpredator in the public’s mind, and there are other forces at work, but these obviously had a tremendous influence. You now this idea that black children are now adults, and this is a huge, huge factor that fuels mass incarceration in this country. The idea that African American children need to be put on the grid and they need to be put on the grid young and that they’re inherently sort of dangerous. And you see this a lot, for example, a couple of commentators at The Washington Post and even Donald Trump himself, they referring to Donald Trump’s children who are 40 years old as boys. Um, and of course Trayvon Martin and Mike Brown who were 16 and 18 respectively when they were killed by a vigilante and a cop respectively, although that’s indistinguishable that they’re sort of adults. So they’re kind of seen as adults. You see this a lot. There’s sort of several Twitter examples of this, which we don’t want to get into, but the idea that, uh, that African Americans are sort of presented as thugs and they find the most menacing photo, uh, it’s gotten a little better, because people are more aware of it now.
Nima: Yeah, it’s been called out a bit.
Adam: For years and years and years you sort of saw this trope. The child-ification of white people versus the adult-ification of African Americans I think was seen, to me, somewhat, most prominently by a public intellectual Bernard-Henri Levy, who referred to Roman Polanski —
Nima: Public intellectual.
Adam: — who was then 43 years old, he raped a 13 year old girl, he referred to it as a quote, “youthful error” on his part. Uh, he’s 43 years old. So this is, this is something that you sort of see time and time again. And that of course is all fueled by this idea of, of a kind of menacing horde of, of African Americans who are, by the way, before they’re even born, they’re already criminalized, right? And while the studies will come out later throughout the nineties, kind of debunking it and there will be way more nuance about crack babies and then superpredators would be debunked. It’s always debunked 10 years after you really, sort of like, the mea culpas about Iraq. It was always eight years. By that point, you’ve already seated in the public imagination this idea of the African American menace so when the government starts throwing them all in prison, nobody cares. And so your sort of low information centrist, your low information liberals are like, ‘Eh, they probably had it coming.’ Right? And so this, the public relations kind of antecedents are already there.
Nima: And so to kind of see how this plays out in the media, I mean, you see this all the time, you see that the white kids or white teenagers or young adults who actually commit crimes and violent crimes, who shoot a lot of people when they’re white, uh, the media presents them as, you know, its a sad story. They were misguided. No one saw this coming. Theater shooting suspect was a “brilliant science student.” But then when black kids are literally shot dead, they’re the victims of the crime and yet the media then shows them in a, in a very different light. So there was a CBS, uh, St. Louis report right after Mike Brown was killed saying, “Police [say]: Mike Brown struggled with the officer before shooting.” And you can kind of see this again and again. You can play a horrifying game called white suspect, black victim and do a rundown of what you see. The white people on this list, the suspects who shoot people who engage in these horrible crimes are said to be “brilliant,” but you know, “a social misfit.” And they had all this, all this promise, they were “fascinated by guns,” but you know, hey, “were devoted Mormons.” So-
Adam: Who? Whom amongst us?
Nima: “Soft-spoken, polite, a gentleman,” a “fine person,” “straight-A student.” And again, those are white people who actually commit the crimes when black people are the victims of the crimes. So it’s not even a one to one comparison. It is completely flipped. You see this, you see their history, their history of narcotics abuses and tangles with the law. That the teen who was slain, maybe it was a drug related death? I mean, hey, you know, they were black, so right? That they are blamed for their own deaths because of who they are. Uh, “Trayvon Martin was suspended three times from school” before he was murdered. Can you believe it?
Adam: So, uh, and this is, there’s dozens of, of different examples of this. We didn’t cherry pick. You can sort of compare the respective, uh, sources in the show notes. And so, you know, this is something that’s, that’s something that we’ve covered a lot as writers. And so you see this asymmetry, which is sort of the logical end point of a lot of the sort of criminalization of, of African American people as such. And the kind of pseudo scientific recent version of it.
Nima: I mean, you’ll see that, you know, when there was a case of Timothy Caughman, a black man who was stabbed to death and the suspect was deemed by the New York Post when they were looking for him, a “well-dressed” man.
Adam: So this was a white supremacist who drove up from Baltimore in March of 2017. We talked about it a few episodes ago. He drove for the express purposes to go to New York to kill a black person. He pulled out a 26 inch a katana sword, stabbed him in broad daylight and then turned himself into the police. And this is how The New York Daily News, which is supposedly the liberal paper in New York, this is how they described the victim. “He had 11 prior arrest, including for marijuana, assault, resisting arrest and menacing.”
Nima: That’s the victim.
Adam: Uh, right. Again, this asymmetry is something you see time and time again.
Nima: Right? So Nazis are described as “dapper,” you know, who have cool haircuts and then the, the, the black victims of crime, you get their whole rap sheet, you know, you see this again and again, there’s the, there’s the angry black girl trope with black women being seen as inherently aggressive, even when they’re protecting themselves. There’s the story of Marissa Alexander who actually fired a warning shot in the air when her husband was, um, really threatening her and trying to strangle her and she was a registered gun owner. She fired a warning shot in the air and, uh, was subsequently sentenced to 20 years in prison. That sentence has since been overturned. You see it when a South Carolina student gets thrown to the ground by a so-called school safety officer, when women are brutally arrested in Waffle Houses and outside movie theaters, in videos that have recently gone viral, but you, you, you really do see this again and again.
Adam: So this criminalization of youth that was fueled by this media panic begins to create what’s broadly now called the sort of school-to-prison pipeline, which is kind of zero tolerance and other punitive policies for children. The idea that they’re, they’re kind of born criminals in the prisons need to treat them as such until they get funneled into the prison system. The US Department of Education in 2015 saw that black children were three times more likely than their white counterparts to be suspended or expelled for the exact same offenses. Um, according to the same study in 2015, the Georgetown Law Center found that 31 percent of girls in juvenile detention had been sexually abused. So at the same time the rate of African Americans or women goes up as well. It almost goes up proportionally. Obviously there’s less women in prison in general, but African American women were being criminalized as well. And what you saw time and time again was that they don’t have the, the school-to-prison pipeline, they have a lot of researchers are now calling the sexual abuse-to-prison pipeline where a number of African American girls who are in juvenile detention are victims of sexual abuse. In fact, there was one study that showed in South Carolina, 81 percent of the girls locked up in the juvenile system were victims of sexual violence. In Florida, the number is 84 percent. And in Oregon it’s 93 percent. So what is a social problem and a problem of patriarchy and sexual abuse is treated with one sort of solution, which is the throw them in prison. Because again, African American-ness by its very nature has been criminalized in the public mind. And again, the public’s perception of African Americans as being criminals is less about what they actively do its more about the fact that there’s zero empathy that no one sort of cares. They’re kind of seen as black and brown. They go into the sort of sausage machine and they’re kind of pumped out and you throw stats at people about carceral rates or the disproportion amount of African Americans in prison, they make up 12 percent of the population, but 40 percent of the prison population and people sort of generally don’t care because they have this in their image through these various moral panics about African American criminality, that they’re kind of tacitly accepting of the system itself.
Nima: So moving on through the life cycle, we reach adolescence and early adulthood and as we’ve discussed before, you see the weaponization of junk science of, of pseudoscience in coming up with things like Broken Windows policing and stop-and-frisk to really get these people on the grid early and often.
Adam: Right. When they’re teenagers and adolescents. So now again we’ve gone from birth to childhood, now they’re in their teens and you have another moral panic, which again, conveniently comes up around the same time of Broken Windows as a way of creating another pseudo science to justify what is basically just the arbitrary harassment of Black and brown people.
Nima: Right. And actually we’ve discussed this on the show before, but just to recap since, maybe not all of you memorize all of our shows.
Adam: You should.
Nima: Uh, but you really should. So that’s on you. The kind of racist, classist origins of Broken Windows theory really were born of Edward Banfield’s political science work from the University of Chicago saying that, “The implication that lower-class culture is pathological seems fully warranted.” The idea that people whose “propensity to crime is so high that no set of incentives that is feasible to offer the whole population would actually influence their behavior.” It kind of assumes that “young lower-class males” (dog whistle, what does that mean?) um, were definitely going to commit crimes in the future and therefore you should just preemptively lock them up. This was manifest later in a 1979 Public Interest article by Nathan Glazer, who basically said that people who do graffiti in subways are basically the same as “criminals who rob, rape, assault and murder passengers. They’re just part of one world of uncontrollable predators.”
Adam: It’s another variation of pre-crime. So you’re being, you’re being rounded up and criminalized for something that is not even a thing you’ve done yet.
Nima: Right. So you really saw this manifest in the 1982 Atlantic magazine cover story on Broken Windows, uh, that really led to police tactics changing from then on talking about prosecuting and rounding people up for what seemed like pettier crimes because doing that will then deter more violent, more destructive crimes.
Adam: And so The Daily News was one of the biggest pushers of this, uh, again, the sort of liberal publication. And in 2013 they did a mea culpa on their support for Broken Windows, although they still support to this day, um, stop-and-frisk and it’s not really clear why they had this mea culpa, but they sort of, I guess it became once they got rid of it and then the crime continued to go down, they were like, ‘Oh, sorry.’ Again, everyone sort of does this, ‘my mistake’ after tens of thousands of people are put in prison.
Nima: Yeah, the examples of this are really just too many to go through. The Daily News was very upset that there were limits being put on, being put on cops.
Adam: Um, and so then we move onto our, our next stage, um, the arrest. And while this is all happening of course you have a torrent of police and cop dramas, that paint a very specific picture that police —
Nima: Just a few. Just a few. (Laughing)
Adam: That police are always the good guys and they’re the fundamentally good. And while occasionally they’ll have a corrupt one every now and then they’ll have a sort of a crucible episode where like, Lenny takes a bribe or whatever, like generally cops are —
Nima: But they really feel bad about it.
Adam: They’re like fundamentally good.
Nima: They’re really complicated humans.
Adam: And then in every single crime ever goes to trial. And the fact that the, that the vast, vast majority of people never see a jury or a judge is actually hugely important and one of the things we’ll talk about with our guests, but in the public perception, the system is seen as a generally very fair, if not weak on crime or sort of, you know, you have these kinds of pro-victim sanctimony from some of the Law & Order cast.
Nima: So you’ll actually see this bear out in studies. So Kathleen Donovan, a professor of political science at St. John Fisher College in Rochester, found in a study that “viewers of crime dramas are more likely to believe that police are successful at lowering crime use force only when necessary and that misconduct does not typically lead to false confessions.” (Audience laughter) So thank you, SVU.
Adam: So one, uh, one example of this, of this horribly kind of a fascist threat and cop shows is one called Chicago PD, which is one of the top rated police shows. Uh, they ran an advertisement campaign in 2015 and by the way, this is the height of sort of posts for sort of Ferguson and Black Lives Matter. They ran an ad campaign or I’m sorry, at the beginning, at the end of 2014, that was sort of overtly promoting torture. So like the idea of the cops were like, ‘don’t fuck with’, so edgy they put the asterisk. (Audience laughter) Um, “Don’t **** With My City.” So then they had these other sort of overtly fascist posters like “Do What You Gotta Do,” where the guy’s like twisted his arm.
Nima: And like possibly planting a knife.
Nima: Right? ‘Eh, do what you gotta do!’
Adam: And so here you have, “Look at me. See that? If you ever cross that line, the next trip you take will be at the bottom of the river. Stay outta my city.”
Nima: That’s a cop!
Adam: You can go, you can go on to Facebook comments and it’s all sort of, and again, this is somewhat nonscientific, but you go on the Facebook or Twitter and it’s like all like ‘you guys get the job done’ and if you watch the show, there’s several instances of torture and torture sort of working. And again, every now and then every like tenth episode some like lawyer at NBC will be like, ‘Eh, let’s do like one where the guy’ and they’ll like have something that’s bad.
Nima: Like ‘maybe not so much torture this show?’
Adam: Right. This is produced by Dick Wolf who did all the Law & Orders. He’s very friendly with cops. Now incidentally, Dick Wolf show, if you know anything about Dick Wolf, he’s represented by the William Morris Agency, which is the head of which is Ari Emanuel, who is Rahm Emanuel’s brother.
Nima: Rahm Emanuel, the mayor of Chicago.
Adam: So there’s kind of a synergy here. Uh, where you sort of have the political class and the entertainment kind of teaming up when it was on Law & Order did events with the police, they would do drive bys with the police. There’s a very close relationship, but this show sort of took it next level in the kind of Ferguson era and what was sort of overtly fascist.
Nima: The city of Chicago actually has a long history of actually torturing people.
Adam: Right, which is important. You should talk about that.
Nima: (Chuckles) Well, so torture when it’s depicted in TV shows actually has a lot of influence on the viewership that there have been studies finding that when torture is shown to work, those viewers actually even there, even if they’re kind of nominally liberal, will then think more often that torture works and if you look at shows that are edited, where torture doesn’t provide confessions, doesn’t provide certain kinds of usable information. The perception that torture works actually drops. So this is not just ‘Eh, you know, it’s entertainment. Fucking relax.’ These things really do have real life implications.
Adam: Yeah I feel like a great part of our, a great part of our time has been spent saying the media actually affects people and the reason we know this is because there’s an advertising industry and if it didn’t affect people, there wouldn’t be one. So, I mean this a, there’s an old joke that, that advertisers spend for every million dollars, advertisers spend convincing their clients that TV influences people, they spend a million more convincing Congress it doesn’t. Of course it does. And so there’s, there’s the study we decided was from was from two researchers at UCLA that they, they showed a clip from 24 and it actually informed, uh, people, uh, whether or not they support torture and thought it worked. And this is something you see time and time again.
Nima: Well, let’s move on because I’m very excited to get to our guests. We have one more issue to address, which is the plea.
Adam: Um, so this is how, how they, how the media convicts people before they’ve set foot in a courtroom by accepting the NYPD or the Chicago PD or whoever’s PD as being gang members or being criminals before they’ve even had a trial.
Nima: And the news loves mug shots, perp walks, it’s all over local news. If you tune in at 11 it’s all about the latest gang that was busted. Actually showing mug shots, this is before anyone is actually, these are all suspects, these are all alleged criminals who have been arrested but not, not yet even arraigned, um, and yet their faces are all over the news branded as criminals.
Adam: Yeah and we increasingly see this with these um, we, we saw this with a moral panic over the purge in Baltimore, uh, you had this kind of mindless repetition of police stories. Teens are organizing a purge of social media. Again, another story that turned out to be total horseshit. Um, there’s been a lot of revisionist revisionism at that amongst the local media, but if you ever, if you’re watching Baltimore local TV that night as I was, you would, you would literally think it was the movie The Purge. It turns out it was about a block and a half radius and I think a CVS was burned and they were freaking out by the way. You can read those emails for FOIA. It’s pretty. Um, there, there’s these new things they do these sort of predawn raids with different gang members and the media will routinely just accept that they’re gang members without question. So you see-
Nima: Without any real qualifications.
Adam: There isn’t like, “alleged”, you know “supposedly” —
Nima: They got the bad guys.
Adam: So meanwhile of course there was a story actually a few days earlier in The Daily News because The Daily News is the worst at this, so they’ll sort of say ‘gang members arrested.’ Where they referred to Dennis Hastert who had been actually found by a judge to be a pedophile as an alleged sex offender. So again, this is, you sort of said this asymmetry that gives-
Nima: He was a brilliant A-student! I bet he wasn’t, that guy’s a jackass. (Audience laughter)
Adam: And they put their images on TV and on the news with their names and that’s indelibly on the internet and that, you know, your SEO is an important part of your reputation. So these people’s lives are totally fucked. They don’t give a shit. And of course they’re all there ready with their cameras and the in the, in the bushes-
Nima: Of course.
Adam: Ready for the fucking predawn raids. And how were these pictures taken? They of course knew before.
Nima: And yeah, I mean it really gets to the crux of what is even deemed to be a gang member and the police even have this sheet where you can tick off for arrests and some of the things were, so you’re a gang member if you were hanging out in a ‘known gang location.’
Adam: Which is oftentimes at bodega, so if you’re at a bodega or you wear a certain color, you’re therefore a gang member and so you see that the media is using the definition of gang member.
Nima: And then they have this kind of war zone map. And that’s by the way, Resistance Hero, a former prosecutor [Preet Bharara]—
Adam: Fellow podcast competition. It’s always funny that you have to, like ex presidents are like millionaires having podcasts. I’m like, what are you? Don’t you have anything better to do?
Nima: Anyway. Anyway. Anyway. Anyway, so that leads us to our guests. We are so excited to discuss this and so much more, uh, thrilled to speak with a Rachel Foran, managing director of the Brooklyn Community Bail Fund and Naila Siddiqui, a public defender and member of 5 Boro Defenders. Please welcome them to Citations Needed.
Nima: All right. Welcome to the show.
Rachel Foran: Thanks. Thanks so much for having us.
Nima: Awesome. So first off, we would love to hear about Court Watch NYC, which is why we’re all here tonight, how it was formed and what it does and kind of how you came to this.
Rachel Foran: Um well, thanks. Thanks again. Thanks to all of you for being here. Court Watch NYC, it’s a community led accountability project. We seek to shift court practices, policies, and culture by putting folks in the courtroom to watch what’s happening and report out what we see. We’ve only been around since February. That’s when it launched. Um, but, uh, have trained over 300 New Yorkers, um, to be in Brooklyn and Manhattan arraignments, uh, to, to be there to actually change what’s happening that very day by presence in the courtroom and shifting what’s happening and then also in real time to post out to the larger public what we’re seeing on Twitter and on our blog. And our focus is on the DAs because they hold the most power in the criminal legal system. And the way that Court Watch got started, um, was through the work that our three organizations were doing in the Brooklyn DA election over the summer and the fall, um, so the Brooklyn Community Bail Fund was doing work, 5 Boro Defenders was and then Vocal New York was as well. And once the Brooklyn DA was elected, we were like, let’s come together and think about what we can do to hold the Brooklyn DA accountable to the promises that he had made up until his election. And then that grew into Court Watch NYC.
Naila Siddiqui: And then Court Watch NYC, which we’re trying to get is to get people involved um having it sort of as a form of protest against mass incarceration, over policing of communities of color, criminalizing poverty, substance abuse and mental illness. Um, and also just allowing people to participate in a system that purports to operate in, um, as the people of the State of New York. So it’s like, I mean, the District Attorney’s Office in court, all of their papers and everything, they are the people of the State of New York and generally the people of the State of New York have no idea what their offices are actually doing.
Adam: So, um, you said a phrase, before we go on I want to talk about this phrase, you said “criminal legal system,” which is, I know a preferred term for people who are in the abolitionist or even reform movements over “criminal justice system.” Why is that?
Rachel Foran: Well, it doesn’t do justice. So um —
Adam: It was a leading question. (Laughter) But I, I don’t know, I think we’re obsessed with —
Nima: That was pro.
Adam: We’re obsessed with words on this show. So I’m sort of, I think that’s an interesting turn of phrase that I’m trying to condition myself to say um, and it’s hard because you hear criminal justice, criminal justice. But that of course begs the question.
Naila Siddiqui: Well, and it’s also just, I think a lot of times with the criminal legal system, it’s, you know, laws are created by legislators. That’s how we define crime. And it’s not about justice. It’s, you know, there’s other driving factors that are laws, you know, just, it’s a legal system. It’s not really a justice system —
Adam: No. Otherwise we wouldn’t be here right now.
Naila Siddiqui: That is fair to everyone. Where people, where everyone is presumed, like all the principals about this idea of a criminal justice system don’t actually operate in the criminal legal system.
Adam: Um, so just this morning Harvey Weinstein got a million dollar bail and paid it very quickly and that is of course in stark contrast-
Nima: In cash. In cash.
Adam: In cash. To the majority of the bail situations you see there’s a huge bail reform movement going on, obviously you have New York, you have Chicago, Baltimore. What are, what is the sort of broad argument for the bail reform, the anti cash bail reform system and what are the inequities within that system that people like Mr. Weinstein represent.
Rachel Foran: Yeah, thanks. Great. So bail. What bail is supposed to do? Is it supposed to be this financial incentive that ensures that you at to come back to your court dates? Um, that’s what it’s supposed to do. But in practice, we know the reality, um, uh, for, for most folks, especially here in New York, is that it imprisons people for being poor, it coerces guilty pleas because you’re much more likely to take a guilty plea if that means you can go home as opposed to have to go to Rikers Island. Um, and then it leads to all these horrific collateral consequences, right? I mean, I think most folks here know the story of Kalief Browder, who is one of many people that languished on Rikers Island, um, you know, presumably, presumptively innocent, right? Eventually his case was dismissed and then killed himself after the mental anguish that he went through while being there as a 16 year old. Right? And spending most of his time in solitary confinement. And I think, you know, what bail does is it really shows that there is a system for those who have money and then there’s a system for those who don’t. And Harvey Weinstein’s case perfectly like exemplifies this in every single way. Right? He walked into the courtroom this morning having already discussed with someone what his, what his bail was going to be so that he had the money there to pay it, right? I’m in court with, you know, thousands of dollars on me and I still like when we get referrals for folks who are, um, who have their bail set right there, it’s takes six hours for us to even be able to like figure out how to pay it because they use fax machines and there’s a lot of complicated processes that happen to actually be able to pay a bail. To hear that he was in and out of the courtroom within like an hour is just totally, it doesn’t actually even make sense.
Nima: ‘A million dollars, you say? Well, I just happen to have this briefcase!’
Rachel Foran: (Laughs) Yeah. In cash!
Naila Siddiqui: And then also just, um, a colleague of mine and I’ll uh, tweet it, her name is Renata Lunn, she’s a public defender and she tweeted, um, “Harvey Weinstein’s net worth is $200 million and $1 million is .5 percent of his net worth.” And um, as public defenders, we represent indigent clients who, if you say their net worth is a thousand dollars, then $50 bail should be appropriate for any violent felony, which is what Harvey Weinstein is charged with.
Nima: And, and what is bail usually set at?
Naila Siddiqui: Oh, in the thousands. I mean, for most of our clients, they can’t afford bail. Like they can’t afford $100. They can’t afford $500. Um, yeah. And so, and they, prosecutors and judges don’t even consider their ability to pay in making that determination. We don’t have an opportunity to have meetings with the DA’s office to have a bail package, um, for our clients when we go, when we’re arraigning them. I mean, even if our clients who are represented by counsel are getting rearrested at the courthouse when they’re making a court appearance. The DA’s office doesn’t always give us a courtesy of, ‘I’m rearresting your client on new charges. You know, let’s negotiate bail. Your client’s been making over ten court appearances, but we’re going to charge him with something else.’ So you notice that bail now becomes a tool to coerce pleas as opposed to ‘We had these allegations we’re still investigating, just giving you a heads up, have your clients surrender and because he’s been coming to court, will agree to his release.’
Nima: A lot of what Court Watch does is really being present, being proximate to this process, auditing what is happening, bearing witness to and then reporting on it in real time and there’s this great kind of feature on, um, on the CourtWatchNYC.org, website that I urge everyone to go to and check out routinely called Last Week In Court, which kind of distills what you’ve been seeing and actually I think doing this really kind of, cuts through a lot of the usual fatalism that comes with being aware of these systems of power, the way power is abused and that nothing can be done about it. I think this works against that in, in a large way. Can you talk about that feature of Court Watch and even what some successes have been through the Last Week In Court blog?
Rachel Foran: Totally. Uh, yes. I think it’s our blog and also our Twitter, which is actually where we in real time are putting stuff out there as it’s happening. Um, and so I think a good example of this is in January, Cy Vance, you know, put out this press release that they were getting rid of bail for misdemeanors, right? They weren’t going to make any requests for bail for certain misdemeanor cases. And this was really, talking about the media, glorified in the media. I just looked up the, um, The New York Times article about it and the headline was, um, “Prosecutors Stop Asking for Bail in Minor Cases,” but actually the fine print was that, first of all, these were only for, for particular misdemeanor cases. And then also that there’s all these types of exceptions. So for example, even if you arrested on a shoplifting case, but let’s say you were on parole, it doesn’t apply, right? They can still ask for bail, but we didn’t like no one actually knew that in the public. It wasn’t reported in the media, the press release, it was like literally fine print at the bottom, but we had just started Court Watch and so Court Watchers were going into the courtroom and being like putting out tweets that said, ‘Hey, like $7,500 bail was just requested for shoplifting case. What’s going on?’ And what happened when we first started doing this was that the DAs actually started responding on Twitter. Their communications person was like, ‘Don’t worry everyone. We were allowed to request bail here because this person had a lengthy misdemeanor record. Um, thanks for letting us know. But like we were totally within our rights.’ And what was fascinating was then community members, like all these random people on Twitter just started berating the DA being like, ‘This makes no sense.’
Adam: The ratio. (Audience laughter)
Nima: Ratio-ed out of bail.
Adam: It is righteous. It is, it is. Unbiased.
Rachel Foran: And it’s the community being able to say like, ‘Hey, like not in our name.’ Like we actually still like no matter the exceptions, we still want these people to be free. Like a misdemeanor record says nothing about the likelihood of whether or not this person’s going to come back to court. Um, and so they’ve stopped responding. But this to me was a success when we’re thinking about what it means for community to be engaged and participate in their system and to actually hold the people that they’ve elected accountable and to be able to say to their, you know, at least to their communications person, like, ‘No, I’m not good with this and maybe I’m not going to vote for you next time.’
Adam: Yeah. And the reason why this Court Watching stuff is important is that judges will be given orders of things they can and cannot do with bail and they just won’t fucking listen. So I know that in Chicago for example, there, there was a ruling by a state court saying that they had to set bail at what people could afford. And lots of judges are just sort of ignoring it or coming up with arbitrary exceptions. Or in the case of Sheriff Dart, um, they were withholding people based on gun charges. But that wasn’t really, so you need these Court Watchers to actually go watch court. Um, this is why we sort of wanted to do this thing for them because it’s super important and the narratives that people get about crime come exclusively from the police department, the police department funnels these stories to the media. The media shapes the narrative that they want and there is no one actually following up and checking people’s homework. It’s basically like an entire, you know, academic department without peer review. It sort of. There’s no other thing looking at it right now.
Naila Siddiqui: And just to add, um, as a public defender who’s in court, um, I have noticed a difference. Like there was a time where they would, you know, ask for bail on turnstiles, when they were prosecuting turnstile jobs, petit larceny, all these minor crimes. And then there was, you know, I’m picking up a file asking like, what’s your bail request? And they’re like ROR [release on your own recognizance] and it’s like ROR? And I’m like, what’s going on? And then you see people in yellow shirts and then there’s times where no one’s there and they’re asking for $3,000 bail for minor shoplifting, um, and, and, you know, possession of a crack pipe, um, any of those types of minor crimes. They’re not asking for it. And then I think about a week ago I was in arraignments again and there were, you saw two yellow shirts and they were two prosecutors and I think it was a more senior prosecutor and it was a supervisor, but they were like talking and sort of pointing. And then also you’re getting the —
Nima: Like ‘Oh no, we’re being watched. They’re here.’
Naila Siddiqui: Yeah, and then you’re getting the ROR, um, you know, or sorry, releasing people on their own recognizance, and not setting bail. Um, so the presence actually matters. And even just in terms of like in criminal court before Court Watch, you would have classrooms coming to watch, you know, as a field trip or whatever. And just the way the judges like, the judge’s demeanor changes in the way they talked to the accused, the attorney. It’s just the whole, it’s people like they’re more, yeah, it just, they change just because there’s the public watching. I can’t, you know, I can’t berate someone who’s only accused.
Nima: They’re going to be, like, a very noble judge.
Naila Siddiqui: Yes.
Adam: It’s like The Godfather Part II where they bring in the guy’s cousin from Italy —
Nima: To just sit!
Adam: — and he changes his testimony. He’s like, “I don’t remember.”
Adam: Um, so yeah.
Nima: It’s his brother but —
Adam: I thought it —
Nima: It’s his brother.
Adam: Oh, that’s an awful, we’ve got to edit that out of the show. (Audience laughter)
Nima: (Whispers) Yeah, it’s his brother.
Adam: Failed Godfather reference.
Nima: You know, Pentangeli.
Adam: So the, the, there’s a short term and there’s a long term goal for a lot of the bail reform movement. Again, varying degrees of different kinds of ideologies, different sects, different kinds of radicalism, this and that. There’s the tension between the short term gain of getting people out of prison, which is obviously hugely a huge moral important and then there’s the broader program of radically shifting and changing the way we talk about prisons and the broader criminal legal system. Can you talk about what those tensions are and how these sort of short term victories build up to something bigger You know, whatever five, ten, twenty years from now?
Rachel Foran: Yeah um.
Adam: Big question, sorry.
Rachel Foran: Big, but so integral and I think it’s the foundation of what we do at least at the, at the Brooklyn Community Bail Fund. Um, so yeah, we see our work as like this as a unnecessary intervention, right? Like getting folks out of jail, freedom like these are, this is important.
Adam: Its kind of a no-brainer.
Rachel Foran: Right.
Adam: Well, for some people.
Rachel Foran: (Laughs) But doing that within the context of a larger vision towards abolishing the money bail system and pretrial detention entirely has always been our focus. We don’t ever in our public messaging or even like amongst internally, posit ourselves as a solution, as an organization that should exist beyond anything else besides actually making systemic reform. Um really intentional about that and not, and not making choices that reify the system in any sort of way. Um, this is actually where Court Watch like why Court Watch is such an integral program to what we do at the Bail Fund and it comes from our comrades in Chicago, right? Who, you know, uh, when the work that was done, there was one of the bigger, the big orgs that helped start it was the Chicago Community Bond Fund and they were, you know, this judicial order was going into place that was going to have judges have to think about actually whether or not someone could afford it in court, um, could afford bail. And this idea that like legislative wins will happen, judicial orders will happen, DAs will make policy announcements, but what does that actually look like in practice as you’ve actually seen is why we need to have accountability mechanisms that are grassroots, that are community led, that are actually in the courtroom to say like, ‘Okay, cool. Like, let’s see if this actually happens.’ And so we see that work, the accountability work as part of what it means to actually ensure that money bail is abolished eventually and in New York State, like this could be a reality in the next couple of years. It could have been this year not looking like it, but hopefully next year. Um, and the, what does that actually mean then? Um in the courtrooms, in practices, um, on a daily basis once, like taken it from a legislative level to the actual practical level, um, and we need systems like Court Watch to make sure.
Adam: And I know that it’s becoming more of a mainstream position. People like Cynthia Nixon have supported it at least nominally and of course through, you have to be careful that people sort of say they support it and then you read the fine print and it’s something always more exotic or clever so you always have to be careful of that as well.
Naila Siddiqui: Well, and even just again as a practical matter when, I mean with Brooklyn Bail Fund, they bail out folks accused of only misdemeanors.
Rachel Foran: By law, yeah.
Naila Siddiqui: By law it can only be misdemeanors and the number of cases where because they can bail out indigent clients who would otherwise not have their freedom and the number of cases that actually end up getting dismissed just, you know, after a certain number of court appearances because you know, it didn’t end up going to trial and it’s um, it, it went past the speedy trial time that was allotted. But the number of cases that just get dismissed because we have a system that’s not designed to give everyone a trial.
Naila Siddiqui: Um, as opposed to plead guilty to this and then you go home, um, or we will set bail.
Nima: Right. Exactly. I think that that’s so often missed, the idea of how much time it takes to keep showing up to these appearances so that when the judge, you, you know, you can go in for an arraignment and then it’s like, ‘Oh, we’re going to defer that. Like, oh, someone didn’t even show up today, so we’re going to maybe defer this to like three months from now or three weeks from now.’ And that person has to, has to show up. Like if they don’t show up, it’s going to suck for them. These are people who can’t just like take time off from work or can’t just do this. So through, through this Last Week In Court also described really how quick arraignments can be. Like, can you just talk about, I mean, how much time people spend in the system?
Naila Siddiqui: Yeah. So it’s, it’s, if you watch an arraignment, it’s, um, the charges are read very quickly. The district attorney makes a bail recommendation, they make, they decide whether or not to make an offer or um, and then they make a bail recommendation. Then the defense attorney gives the reasons, well, either gives the reasons why the judge should release their client or if there’s a situation where an attorney knows that this is a case where bail is going to be set, more reasonable bail that they know their client could possibly post. So I think each appearance may take five minutes and sometimes like two minutes. I mean it varies case to case, but sometimes it’s very quick. You also have judges telling you to wrap it up if you have a lot of positive things to say about your clients or the weaknesses of the case. Like, you know, you know wrap it up and this is, you’re talking about your client’s freedom. You know, you’re talking about the, like you’re reading a complaint, you’re talking about, look, there’s issues with their case. Bail should not be set.
Naila Siddiqui: They haven’t even, they haven’t even written out a proper, um, alleged proper facts to make out this crime. Um, and the judges just don’t want to hear it. They want to hear the next case.
Nima: Right because there’s this assumption that, well, if, if they were so great, they wouldn’t be here as if that’s already the answer.
Naila Siddiqui: No presumption of innocence.
Adam: Yeah. And there’s, there’s kind of a, you know, I think some people listening who are maybe more centrist or whatever. Would see it as, ‘Oh, its all sort of bleeding heart excuse making like a, you know, they had their chance.’ I mean fuck them, whatever. (Audience laughter) But like, you need to establish the stakes here. Um, I have, we have a reoccurring character in a show called a redneck uncle who is based on a very real person. Um, several of them actually, I’m from Texas (laughter) and if he was like, I actually told this, this actual real redneck uncle, I was like, you know, one study has 20 percent of people who are presently incarcerated have not been found guilty of a crime. That they are in fact pretrial and that in some counties that number is as high as 90 percent. ‘Really? No shit.’ Yeah, yeah. No, it’s a real thing. Like people just don’t know that this is not abstract, that things like, again, media panics that are racist and racial criminal system. These aren’t sort of theoretical things. These lead to a situation where you throw people in jail literally without a trial and they stay there for sometimes years. Again, I know several cases, five, six years without ever being any afforded any kind of due process simply by virtue of being poor. So you guys deal with a lot of this shit. I’m, I’m sure a lot of these sort of liberal hand wringers are kind of obviously the reactionary types. What is the single biggest misconception, this is a very big question, I apologize. What is the single biggest misconception that you find from people about the criminal legal system?
Naila Siddiqui: Um, I think that the single misconcept, well, there’s a lot of misconceptions.
Adam: You can pick only one.
Naila Siddiqui: But I think, um, and I guess just from a, you know, Court Watch as focus um, it’s just the enormous power that prosecutors wield. They’re, you know, they’re elected officials. There’s almost no oversight. No one really knows what they’re doing until people start coming to court and watching. Um, they make, they decide what charges to bring. They decide how much, you know, how much jail, like what the sentence should be. Um, and you know, the judges, they are just sort of like, they don’t have, they don’t have the role, the same role that I think a lot of times people assume that judges have this great role. I’ll even have clients ‘Well just tell the judge this and see if the judge will let me do this.’ And it’s like they can’t, that’s, you know, that’s not the judges role. Um, and I mean, even if you look at going back to the Harvey Weinstein case we have-
Nima: Aw, we don’t have to do that. (Audience laughter)
Naila Siddiqui: Well, in terms of like there was when it, when it initially, when he wasn’t prosecuted, um, and side, not the current charges that he’s being prosecuted for now, but it was, ‘Well, we didn’t have enough evidence. It was just a B misdemeanor.’ I’ve had clients who are processed by, um, arrested for having a foot on the subway, for lying down on the subway system. It was a violation. I’ve had the DA’s office in Manhattan, Cy Vance’s office recommend a 15-day jail sentence, which is a maximum for having your foot on the subway or taking up two seats on a subway. And we routinely have clients prosecuted for B misdemeanors. Like, that’s the entire misdemeanor practice. Most of the misdemeanor practice for the Manhattan DA’s office. And so it being just a B misdemeanor, I would love if he declined to prosecute people of color accused of misdemeanors, just it’s just a misdemeanor.
Adam: Yeah. Well, we always like to end on a really positive note.
Adam: It’s a, it’s a theme of the show. It’s a nice beach read. People go out with their friends, they listen to it on the beach or the park.
Nima: They laugh.
Adam: They laugh.
Nima: They feel great about society.
Adam: Yeah. It’s basically one of those rosé cider commercials.
Adam: Alright. So yeah, thank you so much for coming on. That was super informative.
Rachel Foran: Thanks for having us.
Nima: That was amazing. Everyone, please, for our guests, Rachel Foran and Naila Siddiqui. And we’re going to open it up for a very brief, because we’re running long —
Adam: Should we plug them before we go?
Nima: But yeah, yeah, yeah. Well, they’re going to stay. They’re going to stay. Stay for the Q&A. So if you have a question, Florence is there with the mic.
Florence: All right, so questions. All right, we’ll start over here.
Man #1: Hi. Thank you. Longtime listener, first time viewer. (Audience laughter) You guys have done a great job both tonight and previous shows talking about the power of individual DAs offices to sort of set the precedent for how the legal process works. So my question is kind of two parts to the Court Watch folks. One, I have no idea the volume of casework, the average bail numbers, could you shed a little bit of light on some of these numbers you’re working against? And then broader question is how, how can sort of a Joe Q. Public help frame the narrative of this or force the media to cover this in a different way?
Naila Siddiqui: The statistics are kind of, I mean, in terms of like average numbers I mean it’s kind of like, I’m sure it’s out there. Um, I don’t have it, but it’s also hard to gauge because you’re dealing with like, you know, different levels of crime for um, so if you’re looking at, if we talk about misdemeanor bail, um generally I feel like bail is set in the range of the $2,000 or less um it’s rare to have something higher. It does happen. I mean, I had the DA’s office asked for $50,000 bail on a misdemeanor. Um, so it does happen. But, um, it’s generally around the, like I would say maybe $5,000, zero to $5,000 for misdemeanors. The felony range it’s just hard to say because some cases like judge, uh, bail is not even set. That person is remanded. Um, and so it’s, I mean it’s, I guess when you look at the type of crime, um, and then figure out like what’s appropriate in this, what is generally set. I guess that’s sort of the standard.
Nima: Right. So um, so one of the stats is that on any given day there are roughly 70,000 people being held pretrial, pretrial at Rikers and other New York City jails.
Rachel Foran: Right. 80 percent of Rikers and other New York City jails are people pretrial, most of whom are there because they can’t afford bail and you know, 14,000 people a year are sent to Rikers because they can’t afford bail of $1,000 or less. 90 percent of people who have bail set at that amount can’t afford it. Um, so we, we can give you more stats too um, but I think like in terms of yours-all role in helping to reframe and shape narrative, I think about you all going to join Court Watch NYC because I think —
Adam: Give him the cheddar, don’t —
Rachel Foran: Thank you so much because think you know what Court Watch does, right, you get to go into the courtroom and you get to like just put out into the world what you’re seeing. And that in itself is a radicalizing tool for folks. Um, because it, it, it infuriates people. We had a week ago, one of our watchers was in court and saw someone be charged with, a homeless man be charged with a felony for eating a sandwich at a Duane Reed that he had a stay away order from. He has mental illness and they said don’t come back here. And he went back and was eating the sandwich, got arrested. They charged it as a felony and set $500 bail. He’s homeless, right? There’s no way he’s going to be able to afford it. We put that out there and as the Bail Fund, we can’t pay for felonies by a state law. That’s a whole other story. But because Court Watch put that out into the world, we had like, it just infuriated people all over um like in the social media scene. And then someone ended up Venmo-ing one of our people in court and paid the bail in, which was like, wow, cool. We can start a Twitter Community Bail Fund as well. But um, yeah.
Adam: Yeah it’s important to note this is like a super important stop gap. But of course it’s not the solution. This is a, this is a, this is a conversation and sort of ideological platform to talk about while getting people material relief. Right?
Naila Siddiqui: Well, and then also just adding, like, following our Twitter handle and also, you know, you can tweet at the Manhattan DA or any DA’s office. Um, in addition to another Twitter sort of conversation or Twitter war with the Brooklyn DA’s office. There was a situation where they were using a past accusation that wasn’t, there was no conviction. It was just a pass allegation that never had any merit. Never. Um, but it was a past allegation in a reason as why bail should be set and um Court Watch NYC tweeted out that, you know, they’re using. Oh it was a sealed case. It was a sealed case I think. And the Brooklyn DA’s communications person started saying ‘We’re allowed to do that.’ And then suddenly you had lawyers saying like, ‘Actually, you’re not’
Naila Siddiqui: Citing to different statutes and this, you know, this is like litigating on Twitter. You know. And so it was just really interesting in how much power Twitter had and the direct communication you have with the DAs office, which you normally don’t.
Woman #1: Okay. Hi, I’m, I’m a, I do criminal appeals out of California and uh, listening to you, I, so many things that I guess I wonder, um, how do you balance between seeing all of these things that happen everyday, your clients, the people you’re dealing with, just the absolute abject human misery hour in and hour out. Um, how do you manage to not, um, get rage blindness and just be unable to function? Like how does that work where you’ve talked about the need for having like an eye on broader reforms and how do you, how do you balance that?
Naila Siddiqui: I’m still figuring that out.
Rachel Foran: But I feel like this project for me is a big part of that in some ways, like I think, and you can speak to this probably even better, right? Like the, you know, there’s only so much you can do when you’re working in court, right? Because you’re like confined by a system, but to have like an anonymous source that’s community driven and community led and engages folks across so many different spectrums in the city to come in and sort of be invested in, um, uh, you know, in decarceration and getting rid of prisons and police and um in like eliminating racial and economic disparities and having these values and sort of engaging in this project, um, puts like some seeds of hope that there are potentials for bigger change, um, that aren’t just having to like work within a system that’s so broken as we both have to do in our jobs.
Naila Siddiqui: And also just when, you know, when I started as a public defender, like defending someone accused of putting a foot on a subway was just so outrageous um just the whole process. I mean not, you know, just that this person was arrested for this and we have to address this as a, like, in criminal court or at all. Um, you know, seeing how this happened. And I think that knowing that there are people interested in, you know, just the general public, because, you know, you can talk about your cases and you still have to operate in the system, but then seeing that there are goals for greater reform and also just the things that Court Watch, since Court Watch started how, um, you know, changes where the DA’s office is declining to prosecute unlicensed general vending or claiming to, I mean whether or not this is actually a happening practice, but they’re there, they’re claiming to start making these reforms, which is hopeful. And it. But it’s just unfortunate because they’re the ones still leading, they’re still leading the reform, um, but they’re also still driving mass incarceration. So it’s like this-
Adam: Yeah you’ve got to be careful of disingenuous reformism can be worse than the other thing. It’s like the Sheriff Dart in Chicago, which I obviously recently moved to, um, you know, he wears, he wears like hippie beads and talks about being pro and its like, c’mon man, you’re a cop.
Naila Siddiqui: And then it also just goes back to the enormous power that they wield because public defenders who represent the public don’t get to talk about like, talk about how this could actually help clients accused of this because there’s an underlying issue and if we address this, this is a preventative, you know, if we’re looking for prevention as opposed to someone who’s never really spoken to an accused person, you know.
Man #2: In states that have ended cash bail, what effect has that had?
Rachel Foran: I mean, New Jersey is really the only place where that’s happened and they’ve replaced it with, um, a version of a risk assessment tool. It’s only been a year really since that went into place. I guess also Washington DC. Um, but, uh, I think the big thing is that although we say this is like our logo, right, end money bail. It’s not just about and money bail, but it’s about ending pretrial detention and ending any sort of like wealth based detention or surveillance or monitoring that’s going to be user funded. So I think, um, like making sure that when we’re asking for things we’re also thinking about how the system continually mutates to continue to hold people in, um, or to continue to imprison them. Uh, I would, I would say though in Jersey where that has happened, there’s been a significant decrease in the amount of people that are held in pretrial, which is incredible. Um, we do, you know, have to always be vigilant about what it means to use a risk assessment tool knowing that it’s a tool that can be used to, to get folks out or to keep them in. Um, and, and right now it’s, it’s, it’s been okay, but remains to be seen.
Adam: So you’re suggesting the radical idea that people should be innocent until proven guilty.
Rachel Foran: Yeah.
Adam: I don’t know about that. (Audience laughter)
Nima: That’ll never catch on.
Adam: More questions?
Nima: One more.
Man #3: Uh, yeah. Uh, I guess I’ll keep this short. Something that keeps popping up when I look at Court Watch and hear you guys talk about this, is that the community bail fund can only bail people out for misdemeanors. I guess my question is, what the fuck?
Rachel Foran: Great question.
Adam: That’s not true of other bail, yeah, just New York State.
Rachel Foran: No. Yeah. New York is unique in this. Um, uh, yeah, law passed in 2013. Um, that said that, uh, nonprofits who pay bail on behalf of folks that can’t afford it are limited to only misdemeanors where the cash bail amount is $2,000 or less. Um, which severely limits, I mean, it’s still a ton of people, right? 14,000 people a year are sent, it’s a lot of people. But it is, it’s, it’s wild. And the reason why that happened, um, is the commercial bail bond industry, right? They don’t make money off of folks whose bail is less than $2,000 or it’s a very small amount. So when folks, when, uh, when people were paying bail before the law got passed and the commercial bail bond industry found out about it and insurance law, they, you know, push to make sure that we were severely limited in that way. Um, so we do fight, like, again, we’re fighting for getting rid of money bail entirely and ending pretrial detention, but we also do in that meantime push to see if we can get that cap, you know, allow us to pay for people with higher bails and not just misdemeanors.
Adam: One more.
Man #4: This is a question for Adam and Nima. At close to the top of the show y’all talked about how Reagan like explicitly encouraged to the media to demonize crack babies and black mothers. Um, and I’m wondering to what extent do like the police or police unions or police spokesman kind of do the same thing and like propagate the whole prison to or cradle-to-prison pipeline in the media? Like I suspect that it’s a lot because this is America —
Nima: To what extent?
Man #4: Yeah.
Nima: Total? All? What is the — ? (Audience laughter)
Adam: No, I think I see what you’re asking. You’re asking to what extent do they, do they sort of nudge these things um, a lot because police, they have public relations departments that shape narratives around criminality. Um, again, we did, we talked about the origins of cop speak, which is sort of officer involved shooting, bullet enters African American males’ torso, like the sort of like this kind of hip, like it’s sort of a bureaucrat cop speak, that was mostly seeded by the Los Angeles Police Department in the seventies.
Nima: Yeah, by their PR department.
Adam: It was a deliberate public relations effort and then it took off. So like all these things are essential elements of this dehumanization process that justifies mass incarceration. So I would say that police is sort of on the, where the rubber hits the road, public relations departments, again, selectively leaking information about victims. Um, whenever you see, of course a cop shoot someone, their whole rap sheet is on the news that night. The police is, the police officer’s anonymous, so —
Nima: The media couldn’t get that otherwise, without getting it from the cops.
Adam: So the police curate this, this asymmetrical media narrative very much so. And I think that provides the kind of broader propaganda that justifies these laws. Because again, the major problem is the inertia of the system where you have these sort of quote unquote “good-natured liberals” who just don’t give a shit or look the other way or are not outraged by it. And so the machines, that train just keeps going down the tracks and if you’ve ever sat in a courtroom for more than 10 minutes, you see it’s a sausage factory. They just come in and they come out. Five years, three years, two years. Like it’s just like taking out the trash and taking out the, it’s, you know, it’s ordering a drink, it’s nothing. And like that system cannot perpetuate itself without a massive ideological regime of indifference. And that regime is propped up by all these, all these, this is only a fraction of the fraction of that regime, but we try to sort of talk about it, right? Um, and you know, liberal indifferences is the issue here. Most people just don’t give a shit.
Nima: On that happy note. (Audience laughter, applause) We would like to thank our guests Rachel Foran and Naila Siddiqui again for joining us.
Nima: We’d like to, of course, thank everyone working tirelessly at Court Watch NYC and their affiliated organizations: VOCAL, Brooklyn Community Bail Fund, 5 Boro Defenders. Of course, huge thanks to the folks here at UnionDocs especially Will Jackson and Ariel Edelman who made this all possible. That’s it for us. Of course you can the show on Twitter @CitationsPod. Like, share, blah blah blah whatever Facebook things happen on Facebook at Citations Needed. Support the show at Patreon.com/Citations Needed Podcast with Nima Shirazi and Adam Johnson. Special — extra special — thank you to our critic-level supporters.
Nima: That is it for us. Thanks for listening to Citations Needed. Of course everyone here in person at UnionDocs. Thank you everyone for coming out and supporting the show. I am Nima Shirazi.
Adam: I’m Adam Johnson.
Nima: Citations Needed is produced by Florence Barrau-Adams. Our production consultant is Josh Kross. The research assistant is Sophia Steinert-Evoy. Transcriptions are by Morgan McAslan. The music is by Granddaddy. Thank you, everyone. Have a wonderful night.
This episode of Citations Needed was recorded in front of a live audience at UnionDocs in Brooklyn, New York on Friday, May 25, 2018. It was released on Wednesday, June 6, 2018.
Transcription by Morgan McAslan.